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ELRCAllowedNot stated in judgment (appeal from ELRC No. 86 of 2018)· [2023] KEELRC 955 (KLR)

Masinde v Golden Loaf Bakers Company Limited (Employment and Labour Relations Appeal 5 of 2019) [2023] KEELRC 955 (KLR)

Employment and Labour Relations Court
28 April 2023
ANAbuodha J. N.
605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court set aside a Kshs 141,856 judgment won on appeal because the losing company was never properly served — the case now goes to a fresh trial.

What this practically means

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Executive summary

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The Chief Magistrate's Court in ELRC No. 86 of 2018 dismissed the claim, but on appeal this Court, by judgment delivered on October 25, 2021, allowed the appeal and entered judgment against the respondent for Kshs 141,856 plus costs. When the appellant moved to execute, the respondent filed the application dated April 25, 2022 alleging it was never served with the claim or appeal documents, that the matter proceeded undefended for that reason, and that it had a good defence. It further denied ever employing a 'Rahab' or a guard named Philip Ogolla, contending that service on a guard could not constitute proper service. The appellant opposed, maintaining the respondent was duly served and that the lower court, satisfied on service, properly heard the matter ex-parte after the respondent failed to enter appearance. The Court reaffirmed that service is grounded in the natural justice rule against condemning a party unheard. Examining the affidavit of service sworn on November 10, 2019, it noted service was effected on Philip Ogola, a security guard, without the process server explaining the circumstances of serving him rather than an authorized official. The Court also observed that the earlier appeal had concerned whether the lower court was justified in dismissing the suit, not service. Finding no proper service, the Court reviewed its own judgment of October 25, 2021, substituted it with an order of re-trial of ELRC No. 86 of 2018 before another Magistrate, and directed the respondent to file and serve its response, documents and witness statements within 21 days. No costs order was made.

Key legal issues

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01

Properness of service of the claim and appeal documents

Holding

Service on a security guard, Philip Ogola, without explanation of the circumstances, did not constitute proper service on the respondent.

Reasoning

The affidavit of service sworn on November 10, 2019 showed that summons were served on Philip Ogola, a security guard, rather than an authorized official of the respondent. The process server did not state under what circumstances he served the guard instead of an authorized official. The court therefore found service improper, satisfying the precondition for setting aside the ex-parte judgment.

p. 2
02

Whether the Court could review its own judgment on appeal

Holding

Yes - having found no proper service, the Court reviewed its own judgment of October 25, 2021 and substituted it with an order for re-trial before another Magistrate.

Reasoning

The Court held that the essence of service is to ensure no party is condemned unheard, and a judgment entered without hearing a party can be set aside once non-service is sufficiently demonstrated. It distinguished the earlier appeal, which concerned whether the lower court was justified in dismissing the suit - an issue on which service was not in play.

p. 2

Legal principles established

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  • The principle behind service of court papers is grounded in natural justice - no person should be condemned unheard.
  • A judgment entered without hearing a party can be set aside where the affected party sufficiently demonstrates there was no proper service.

Court orders

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  1. 1.The Court's judgment on appeal delivered on October 25, 2021 is reviewed and substituted with an order of re-trial of ELRC No. 86 of 2018 before another Magistrate
  2. 2.The respondent is directed to file and serve its response to the claim and necessary documents and witness statements within 21 days of the ruling
On appeal from
Chief Magistrate's Court (ELRC No. 86 of 2018)
ELRC No. 86 of 2018
Jurisdiction invoked
Inherent power of the Court to review its own judgment; invoked on the respondent's application dated April 25, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Masinde v Golden Loaf Bakers Company Limited (Employment and Labour Relations Appeal 5 of 2019) [2023] KEELRC 955 (KLR)", Case Analysis (2023). Not stated in judgment (appeal from ELRC No. 86 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/955/eng@2023-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.